In
December 2012, Sidney Kilmartin of Manchester, Maine mailed
Andrew Denton of Hull, England, who was profoundly depressed
and suicidal, enough potassium cyanide to kill him, and Mr.
Denton took the cyanide and committed suicide. On December 9,
2015, a federal grand jury issued a fifteen-count superseding
indictment, charging Mr. Kilmartin with two counts of wire
fraud and one count each of mail fraud, mailing injurious
articles resulting in death, witness tampering, and witness
retaliation for his alleged conduct with respect to Mr.
Denton.

Mr.
Denton was not Mr. Kilmartin's first victim. The
remaining nine charges in the superseding indictment alleged
that Mr. Kilmartin perpetrated mail and wire fraud against
four additional depressed individuals, who ordered and paid
for cyanide from Mr. Kilmartin but instead, he sent them
harmless Epsom salts.

After a
six-day trial on the charges involving Mr. Denton, on October
11, 2016, a jury convicted Mr. Kilmartin of two counts of
wire fraud and one count each of mail fraud, mailing
injurious articles resulting in death, and witness tampering;
it acquitted him of one count of witness retaliation. Just
before trial began, Mr. Kilmartin pleaded guilty to nine
counts of mail and wire fraud against the four other
individuals named in the superseding indictment.

Mr.
Kilmartin now moves for judgment of acquittal on the mailing
injurious articles resulting in death and witness tampering
counts. He also moves for a new trial based on the admission
of evidence of his scheme to defraud individuals other than
Mr. Denton. Mr. Kilmartin accepted the guilty verdicts on the
wire and mail fraud counts and his motions for acquittal and
new trial do not include his convictions for those crimes.

The
Court denies the Defendant's motions because it concludes
that the evidence is sufficient to sustain the convictions on
the witness tampering and mailing injurious articles
resulting in death counts, and because it concludes that it
properly admitted the evidence of his scheme to defraud
others under Federal Rules of Evidence 404(b) and 403.

Sidney
Kilmartin may have thought he had devised and was
perpetrating the perfect crime. Between April 2012 and May
2013, Mr. Kilmartin designed a scheme to defraud suicidal
persons by pretending to sell them cyanide when in fact he
sent them Epsom salts. Revised Prosecution Version
at 1 (ECF No. 140). In September 2012, posing as a goldsmith,
Mr. Kilmartin ordered and obtained 100 grams of potassium
cyanide for $127.56 from Fisher Scientific, a large supplier
of chemicals for industrial and scientific purposes.
Id. at 2. Mr. Kilmartin then posted a notice on a
website devoted to suicidal persons called
“wantdeathblogspot” that he had industrial grade
potassium cyanide for sale. Id.; Gov't
Ex. 8 web capture ofwantdeathblogspot.co.uk. From September 2012 to May
2013, Mr. Kilmartin used an email address,
skiptin@gmail.com, to communicate with numerous
people around the United States and internationally, and he
agreed to sell them potassium cyanide, accepting payment
through PayPal and Western Union. Revised Prosecution
Version at 3. The payments ranged from $125 to $250 for
about 500 milligrams. Id. at 4; Gov't
Ex. 19 (agreeing to sell Walter Cottle 500 milligrams
for $125). However, instead of sending more expensive fatal
cyanide to his customers, he mailed them inexpensive Epsom
salts, and he pocketed the cost difference. Revised
Prosecution Version at 4-5.

The
scheme must have seemed fool-proof. Having paid for and
received supposed cyanide, the suicidal persons might well
have second thoughts and decide not to take what they thought
was a lethal dose of poison, keep the alleged cyanide for
another dark day, or throw it out. Alternatively, if suicidal
persons actually took the supposed poison, the surviving
customers could hardly complain that it did not work. After
all, they would still be alive. Moreover, upon reflection,
many would be relieved that Mr. Kilmartin had not sent the
real item, some would be too embarrassed to complain, and for
the rare protester, he or she would not be in much a position
to complain because the harm would be continued life.
Furthermore, the chances of being found out as the actual
perpetrator would be remote given the anonymity of the
internet and the complexity of tracking internet sales.

To
perpetrate the mail and wire frauds, Mr. Kilmartin did not
need to actually possess real cyanide. He only needed to make
depressed customers think he had it. But at some point, Mr.
Kilmartin actually went to the trouble and expense of
obtaining cyanide from Fisher Scientific. In fairness to Mr.
Kilmartin, there is no direct evidence as to whether he
purchased actual cyanide as part of his mail fraud scheme;
however, once Mr. Kilmartin had actual cyanide, if a customer
persisted, demanded to be sent what he paid for, and
threatened to report him to the authorities for fraud, Mr.
Kilmartin could make good on his part of the bargain by
sending the person real poison. Once the customer received
exactly what he or she ordered, there could be no continuing
claim of fraud, and if he or she took a lethal dose, the
customer's complaints would be silenced by death.

In
mid-November 2012, Mr. Kilmartin filled an online order for
cyanide from Andrew Denton of Hull, England and sent him
Epsom salts. Mr. Denton received the packet from Mr.
Kilmartin on November 30, 2012, and unsuccessfully tried to
commit suicide with the Epsom salts. Gov't Ex.
55, Andrew Denton Online Report of Internet Crime
Victim at 3 (Dec. 7, 2012) (Denton IC3 Compl.).
When his suicide attempt failed, Mr. Denton became irate with
Mr. Kilmartin, complained directly to him by email, and
accused him of “ripping me off.” Gov't
Ex. 103, Email from Andrew Denton to Skip
Martin at 1 (Dec. 7, 2012). Significantly, Mr. Denton
told Mr. Kilmartin that if he did not get a quick reply, he
would “start firstly by filling in the FBI online
form.” Id. On December 7, 2012, Mr. Denton
went ahead and filed an online complaint with the Internet
Crime Complaint Center (IC3), a multi-agency federal task
force that receives complaints about cyber-crime. Denton
IC3 Compl.

At some
point, Mr. Kilmartin became aware that Mr. Denton had gone
ahead and filed a complaint with the IC3 and Mr. Kilmartin
mailed Mr. Denton potassium cyanide, which Mr. Denton
received on December 19, 2012. Gov't Ex. 102,
Email Correspondence between Kilmartin and Denton.
On December 20, 2012, Mr. Kilmartin emailed Mr. Denton,
acknowledging that the “FBI” was “aware of
his goings” and asking him to “do something with
your hard drive before your event.” Id. On
December 31, 2012, Mr. Denton used the cyanide Mr. Kilmartin
supplied to kill himself.

B.
The Charges and the Guilty Pleas

On
December 9, 2015, a grand jury returned a fifteen-count
superseding indictment charging Sidney P. Kilmartin with
twelve counts of fraud for a scheme in which he defrauded
suicidal persons by pretending to send them potassium cyanide
and instead sending Epsom salts, and with one count each of
mailing injurious articles resulting in death, witness
tampering, and witness retaliation for killing one of the
fraud victims, Andrew Denton, in an effort to prevent Mr.
Denton from complaining to law enforcement or to retaliate
against him for his having done so. Superseding
Indictment (ECF No. 85). On the morning of October 3,
2016, right before jury selection, Mr. Kilmartin pleaded
guilty to the nine counts of fraud in the superseding
indictment that did not involve the decedent Andrew Denton,
leaving only the Denton counts for trial. Min. Entry
(ECF No. 142). The victims of the nine fraud counts to which
Mr. Denton pleaded guilty were Walter Cottle of Georgia,
Superseding Indictment at 2, Stacey Williams of
Colorado, id. at 2, 3, Derek Jorgensen of Hull,
England, id. at 3, 4, and Cynthia Kirschling of
California. Id.

Trial
began on October 3, 2016, directly following Mr.
Kilmartin's guilty pleas and jury selection. Min.
Entry (ECF No. 142). Twenty-eight witnesses testified,
Witness List (ECF No. 150), and over 100 exhibits
were received into evidence. Ex. List (ECF No. 151).
On October 11, 2016, a jury convicted Mr. Kilmartin of one
count of mailing injurious articles resulting in death, two
counts of wire fraud, one count of mail fraud, and one count
of witness tampering. Jury Verdict Form at 1-2 (ECF
No. 153) (Verdict Form). The jury acquitted Mr.
Kilmartin of one count of witness retaliation. Id.
at 2.

On
October 25, 2016, Mr. Kilmartin moved for judgment of
acquittal under Federal Rule of Criminal Procedure 29 and for
a new trial under Federal Rule of Criminal Procedure 33.
Def.'s Mot. for J. of Acquittal and New Trial
(ECF No. 162) (Def.'s Mot.). The Government
opposed Mr. Kilmartin's motions on November 1, 2016.
Opp'n to Mot. for Acquittal and New Trial (ECF
No. 167) (Gov't's Opp'n). The Court held
oral argument on the motion on December 15, 2016. Min.
Entry (ECF No. 176).

On
March 20, 2017, before the Court issued a ruling on the
motions, the Court granted a motion to withdraw by Mr.
Kilmartin's then-counsel, Attorney Martin Ridge, and
appointed Attorney Bruce Merrill to represent Mr. Kilmartin.
Mot. to Withdraw (ECF No. 190); Order (ECF
No. 191). The Court allowed Attorney Merrill time to
familiarize himself with the case and on July 10, 2017, Mr.
Kilmartin filed a supplemental memorandum in support of his
motion for acquittal and new trial. Def.'s Suppl.
Mem. of Law in Supp. of Mot. for J. of Acquittal and New
Trial (ECF No. 204) (Def.'s Suppl. Mem.).
The Government filed its supplemental memorandum on July 31,
2017. Gov't's Suppl. Mem. Regarding Def.'s
Mots. for Acquittal and New Trial (ECF No. 205)
(Gov't's Suppl. Mem.). Mr. Kilmartin replied
on August 12, 2017. Def.'s Reply to Gov't's
Suppl. Mem. of Law Regarding Def.'s Mot. for Acquittal
and New Trial (ECF No. 209) (Def.'s Suppl.
Reply). The Court held a second oral argument on August
16, 2017. Min. Entry (ECF No. 211).

II.
RULES 404(b) & 403: AN EVIDENTIARY ISSUE

Throughout
trial, the defense pressed a significant evidentiary issue:
whether other victims of Mr. Kilmartin's fraudulent
scheme would be allowed to testify about their dealings with
him. To place this issue in context, just before Mr.
Kilmartin pleaded guilty to the nine counts of fraud, the
Court raised with counsel whether it should advise Mr.
Kilmartin that the fact of the fraud convictions and the
facts underlying those convictions might be admissible as
evidence in the trial on the remaining Denton counts.
Chambers Conf., Tr. of Proceedings 2:11-17
(Oct. 3, 2016) (ECF No. 163). Both counsel agreed that the
fact of the convictions would be admissible, but defense
counsel had qualms about the exact facts alleged in the
written prosecution version that the Government had submitted
in anticipation of the guilty pleas. Id. 2:18-3:19.
At the Court's suggestion, counsel met and resolved the
facts to which Mr. Kilmartin was prepared to admit at the
Rule 11. Id. 3:20-4:17. During Mr. Kilmartin's
Rule 11 just before jury selection, the Court warned Mr.
Kilmartin not only that the guilty pleas, but also that the
facts underlying the guilty pleas might be admissible as
evidence during the trial on the Denton counts.[2] At the Rule 11,
Mr. Kilmartin expressly agreed that the contents of the
Revised Prosecution Version were true. The Court accepted Mr.
Kilmartin's guilty pleas to the nine fraud counts.

At a
second chambers conference just before opening statements,
defense counsel indicated to the Court that he intended to
refer in his opening statement to Mr. Kilmartin's guilty
pleas to the nine fraud counts, and he asked whether either
the Court or the Government objected to his doing so.
Chambers Conf., Tr. of Proceedings 11:13-23
(Oct. 3, 2016) (ECF No. 164). The Government did not object
and the Court allowed defense counsel to discuss Mr.
Kilmartin's guilty pleas in his opening statement.
Id. 11:24-13:5.

Throughout
the trial, the Government introduced evidence of Mr.
Kilmartin's fraud against victims other than Mr. Denton
(the non-Denton fraud evidence). For example, by stipulation,
the Government read into record the Revised Prosecution
Version of events underlying Mr. Kilmartin's pleas of
guilty. In addition, the Government presented the testimony
of Walter Cottle, Stacey Williamson, and Cynthia Kirschling,
three of the four victims of the nine counts of fraud to
which Mr. Kilmartin pleaded guilty. These victims described
how they became suicidal to the point of seeking cyanide, how
they met Mr. Kilmartin online, how they corresponded with him
about cyanide, how they paid for the cyanide, and how the
defendant packaged, addressed and mailed them a white
substance they believed was cyanide but that later tested as
Epsom salts. It also presented the testimony of Stuart Quinn,
a UK law enforcement officer, about the fourth named victim,
Derek Jorgensen. Mr. Quinn described Mr. Jorgenson's
prior attempts at suicide and dealings with Mr. Kilmartin.

In
addition, the Government introduced evidence concerning
victims other than those charged in the superseding
indictment. For example, it presented evidence of email
correspondence with 247 different email addresses in which
Mr. Kilmartin described the quality of his cyanide and
explained how much it took to kill, how its effectiveness
could be increased, how much it cost, how to pay for it, how
to ship it, and where he lived. The Government also presented
testimony from Autumn Roland, who was similarly defrauded but
never received any package from Mr. Kilmartin. It presented
evidence that the grandmother of a victim, Edith Collins,
filed an IC3 complaint against Mr. Kilmartin without his
knowledge.

Mr.
Kilmartin had a continuing objection to the admission of this
non-Denton fraud evidence based on Rule 404(b), arguing that
it was improper evidence of other crimes or wrongs. The Court
overruled the objections, finding that the evidence had
special relevance to motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident, but instructed the jury regarding the
limited use to which it could put the evidence.

III.
UNITED STATES v. FORD

Three
days after the jury verdict in Mr. Kilmartin's case, the
First Circuit decided United States v. Ford, 839
F.3d 94 (1st Cir. 2016). In Ford, the defendant
appealed from a conviction in this Court of conspiracy,
manufacturing over 100 marijuana plants, maintaining a
residence for marijuana manufacturing, and possessing a
firearm as a felon, all of which related to a marijuana grow
operation run by Mr. Ford, his wife, and his two sons in
Maine. 839 F.3d at 98.

Mr.
Ford had previously been convicted in 2002 in the
commonwealth of Massachusetts of possession of marijuana with
intent to manufacture, distribute, or dispense, a felony
under Massachusetts law. Id. at 102. The evening of
the execution of the search warrant in Maine, Mr. Ford had
told law enforcement that he got “popped in Mass”
as a result of his previous grow operation in Massachusetts
and that he had ended up with “a frigging . . . felony
conviction because they forced me to plea bargain.”
Id. at 98. Significantly, in his opening statement,
defense counsel conceded that Mr. Ford had been growing
marijuana in his Maine barn, but he denied that Mr. Ford had
grown as much marijuana as the Government alleged or that he
had been engaged in a conspiracy with other family members to
grow the marijuana. Id. at 99.

At
trial, the Government proposed to call James Bruce, a
Massachusetts State Trooper, to testify about the facts
underlying Mr. Ford's 2002 conviction. The First Circuit
summarized Mr. Bruce's testimony at trial:

Bruce testified that he executed a search warrant at 2
Fellsmere Avenue in Wakefield, Massachusetts on October 11,
2002. He discovered three rooms “devoted entirely to
marijuana.” The operation was “pretty impressive,
” with plants in different stages of maturity and a
variety of equipment. During the search, [Mr. Ford] informed
Bruce that he did not reside at the house but actually lived
across the street at 5 Fellsmere Avenue. [Mr. Ford] consented
to a search of that home, where Bruce discovered another grow
operation. Bruce testified the operations were consistent
with distribution, rather than personal use.

Id. at 102. Mr. Ford objected to the admission of
this testimony at trial under Federal Rules of Evidence
404(b) and 403, arguing that the evidence was not relevant
for any special purpose because Mr. Ford did not contest that
he intentionally grew marijuana in Maine. Id. at
101. However, this Court overruled the objection, finding it
had a special relevance to Mr. Ford's motive,
opportunity, intent, preparation, plan, and knowledge, and
the Court provided the jury with a limiting instruction in an
attempt to curb any prejudicial effect. Id. at
101-02.

In
evaluating Mr. Ford's challenge on appeal, the First
Circuit did not discuss this Court's determination that
the facts underlying the 2002 marijuana conviction had the
“special relevance” required by Rule 404(b)(2).
Id. at 109 (“Even assuming Bruce's
testimony was specially relevant for one or more
non-propensity purposes”). Instead, the First Circuit
focused on whether Trooper Bruce's testimony was properly
admitted under Rule 403 and concluded that its admission was
“questionable.” Id. The First Circuit
recited the familiar Rule 403 standard, namely whether the
probative value of the evidence was substantially outweighed
by the danger of unfair prejudice. Id. (citing
Fed.R.Evid. 403).

The
First Circuit acknowledged that even though Mr. Ford had not
contested the Government's allegation that he had
intentionally grown marijuana in Maine, the Government
“still retained the burden to prove each element of the
charges beyond a reasonable doubt and, as a general matter,
was entitled to prove its case by evidence of its own
choice.” Id. (citation omitted). Nevertheless,
the fact that Mr. Ford conceded this “central
allegation” rendered “the probative value of
Bruce's testimony significantly reduced.”
Id. The First Circuit observed that given Mr.
Ford's concession and the “other evidence
presented, ” the Government “arguably did not
need the testimony regarding the Massachusetts growing
operation.” Id. The Ford Court
recited the rule that a trial court should “weigh the
risk of unfair prejudice against ‘the government's
need for the evidence, ' among other factors.”
Id. at 109-10 (citation omitted).

Another
factor weighing against the probative value of the facts
underlying the Massachusetts conviction was the
“remoteness in time” of the prior conviction.
Id. at 110. The First Circuit noted that the
“Massachusetts bust occurred nine years before the
search in Maine.” Id.

Having
concluded that the probative value of Trooper Bruce's
testimony was minimal, the First Circuit turned to the risk
of unfair prejudice and concluded it was “high.”
Id. The First Circuit conceded that Trooper
Bruce's testimony was “not particularly
shocking” and that there was “little danger that
it swayed the jury toward a conviction on an emotional
basis.” Id. (citation omitted). Yet, the First
Circuit opined that “the risk is that the jury used it
to infer criminal propensity.” Id. The First
Circuit considered the risk “especially
pronounced” because “the prior conduct is
identical to the charged crime.” Id. The
Ford Court noted that the “grow operations
were extremely similar; they were both large and highly
sophisticated, with plants in different stages of growth and
a variety of equipment.” Id.

Finally,
the First Circuit discounted the impact of the trial
court's limiting instruction. Id. It wrote that
“in view of the negligible probative value of the
evidence, it is not clear the district court's limiting
instructions were sufficient to curb its prejudicial
effect.” Id. Despite the First Circuit's
expressed reservations about the admissibility of Trooper
Bruce's testimony under Rule 403, the First Circuit
concluded that any error by the trial court was harmless.
Id.

In
light of the Ford decision, the Court ordered the
parties to brief whether it erred in admitting the non-Denton
fraud evidence and, if so, whether the error was harmless.
Order (ECF No. 158) (Ford Order). The
Government filed its memorandum in response to the
Court's Order on November 1, 2016. Gov't's
Mem. Regarding the Effect of United States v. Ford (ECF
No. 166) (Gov't's Ford Mem.). Mr. Kilmartin
filed his memorandum on November 15, 2016. Def.'s
Mem. (ECF No. 169) (Def.'s Ford Mem.). The
Government replied on November 23, 2016. Gov't's
Reply Mem. Regarding the Effect of United States v. Ford
(ECF No. 171) (Gov't's Ford Reply).

Mr.
Kilmartin states that under Rule 29 of the Federal Rules of
Criminal Procedure, “the court on the defendant's
motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a
conviction.” Id. at 2. Citing caselaw, Mr.
Kilmartin explains that when a court evaluates whether the
evidence is sufficient, it must “determine whether
viewing the evidence in the light most favorable to the
Government, any rational trier of fact could have found the
defendant guilty of the crime beyond a reasonable doubt . . .
whether the evidence, if believed, would establish each
element of the crime.” Id. (citations
omitted). Mr. Kilmartin then sets out the elements the
Government needed to prove beyond a reasonable doubt to
convict him of Counts One and Fourteen. Id. at 3. He
contends that “there was insufficient evidence
presented to the jury to sustain the convictions on these two
counts.” Id.

With
regard to Count One, Mr. Kilmartin says that the Government
introduced evidence of two mailings from Mr. Kilmartin to Mr.
Denton, alleging that in the first Mr. Kilmartin sent Epsom
salts, but that after Mr. Denton filed an IC3 complaint, Mr.
Kilmartin sent a second package that contained potassium
cyanide. Id. at 3-4. Mr. Kilmartin argues, as he did
at trial, that “the evidence did not support the
conclusion that the contents of the package was potassium
cyanide because there was no scientific proof that the
substance found at Mr. Denton's home was, in fact,
potassium cyanide.” Id. at 4. In addition, Mr.
Kilmartin argues that “[t]he evidence was overwhelming
that even if the item mailed was potassium cyanide, the
article mailed did not itself kill Mr. Denton.”
Id. He points out that the item was delivered on or
about December 20, 2012, but Mr. Denton died on December 31,
2012, as a result of his own actions. Id. He also
states that the evidence showed that Mr. Denton had been
suicidal for years leading up to 2012 and that he had made
many attempts to take his own life. Id. Mr.
Kilmartin argues that “[t]he act of mailing the item
was so far removed from Mr. Denton's death as to make it
not reasonable to conclude that the item resulted in Mr.
Denton's death.” Id.

Mr.
Kilmartin also argues that the evidence does not support a
conviction on Count Fourteen. Id. at 5-6. He
acknowledges that the evidence established that Mr. Denton
complained to IC3, but states that the evidence also
establishes that Mr. Denton wrote back to IC3 recanting his
complaint and stating that he had worked out the problem.
Id. at 5. He argues that there was no evidence that
the complaint was forwarded to law enforcement or anything
was done with the complaint and therefore “[f]or the
jury to conclude that there was a reasonable likelihood that
such a communication would have been made to a federal law
enforcement officer had to have been based upon speculation
by the jury.” Id. Mr. Kilmartin then states
that his argument in Count One regarding the killing of Mr.
Denton applies equally to Count Fourteen. Id. at
5-6. Finally, he contends that “[t]he inappropriateness
of the jury's verdict in Count Fourteen is underscored by
the fact that the same jury acquitted Mr. Kilmartin of Count
Fifteen, which alleged that he killed Mr. Denton in
retaliation for Mr. Denton having made the IC3
complaint.” Id. at 6.

In
addition to the motion for judgment of acquittal, Mr.
Kilmartin moves for a new trial based on the admission of
evidence of Mr. Kilmartin's scheme to defraud people
other than Mr. Denton. Id. at 6-7. In his view,
“[t]he evidence over and over again highlighted that
Mr. Kilmartin had done many bad things to many victims in
order to make money” and that the “jury was
overwhelmed by the sheer volume of information and
determined, as a result, to convict Mr. Kilmartin of a count
that alleged he killed Mr. Denton.” Id. He
explains that the Court ordered the parties to brief this
issue separately in light of the Ford decision and
says that if the Court concludes that the admission of the
non-Denton fraud evidence was inappropriate, he should be
granted a new trial under Federal Rule of Criminal Procedure
33, which provides that “the court may vacate any
judgment and grant a new trial if the interest of justice so
requires.” Id. at 7.

2.
The Government's Opposition

The
Government agrees that the standard for a judgment of
acquittal is “whether viewing the evidence in the light
most favorable to the government, a reasonable jury could
have found the defendant guilty beyond a reasonable
doubt” but contends that in Mr. Kilmartin's case
“there was ample evidence from which a reasonable jury
could have done so.” Gov't's Opp'n
at 2.

In the
Government's view, there was sufficient evidence to prove
that the substance mailed by Mr. Kilmartin was cyanide.
Id. It states that the evidence showed that Mr.
Kilmartin ordered, paid for, and received 99.6% pure
potassium cyanide from Fisher Scientific; that he advertised
it for sale on the internet; that he corresponded about it
via email; and that he mailed it to Mr. Denton after Mr.
Denton complained about the first package. Id.
Additionally, the Government says that there was evidence
that the content of the second mailer was potassium cyanide,
including a test of the residue from the mailer on the scene
and testimony of the toxicologist who sampled Mr.
Denton's blood. Id.

The
Government also argues that there was evidence from which a
rational jury could have concluded that Mr. Kilmartin killed
Mr. Denton. Id. It claims that the evidence showed
that Mr. Kilmartin intended and desired Mr. Denton's
death in order to protect himself. Id. at 2-3. It
also points to the testimony of the UK law enforcement
officers who responded to the scene of death and ruled out
other possible causes and of the toxicologist who opined that
Mr. Denton was killed by cyanide. Id. at 3.

As for
the witness tampering charge, the Government argues that
there was ample evidence to conclude that Mr. Kilmartin
killed Mr. Denton with the intent to prevent a communication
to a law enforcement officer. Id. It lists the
evidence that it believes supported the conviction, including
evidence that Mr. Denton complained to IC3 about the phony
cyanide and told Mr. Kilmartin he had done so, that the IC3
is an online complaint referral service of the FBI, that Mr.
Kilmartin had committed a federal offense in the form of an
extensive scheme to defraud persons by pretending to send
them cyanide, and that Mr. Kilmartin explicitly asked Mr.
Denton to destroy evidence of their interaction because Mr.
Kilmartin was concerned that “with the FBI aware of
[his] goings on the last thing [he needed was] to give them
more fodder.” Id. Additionally, the Government
argues that the acquittal on the witness retaliation charge
can be explained by the fact that the jury had only
circumstantial evidence of retaliation, but direct evidence
of witness tampering, and therefore the acquittal for
retaliation “does not compel the conclusion that the
jury speculated about, or was confused with regard to, the
tampering count.” Id. at 3-4.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Government also maintains that Mr. Kilmartin should not be
granted a new trial based on the admission of the non-Denton
fraud evidence. Id. at 4. The Government briefly
argues that the evidence was admissible on several grounds
and that its probative value was not substantially outweighed
by the risk of any prejudicial effect. Id. at 4-5.
It incorporates its ...

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